10-456-ag
Diallo v. Holder
BIA
Mulligan, IJ
A098 278 787
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of November, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSEPH M. McLAUGHLIN,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _______________________________________
12
13 THIERNO ABDOULAYE DIALLO,
14 Petitioner,
15
16 v. 10-456-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ronald S. Salomon, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jennifer Paisner Williams,
28 Senior Litigation Counsel; Lauren E.
29 Fascett, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is GRANTED.
5 Petitioner Thierno Abdoulaye Diallo (“Diallo”), a
6 native and citizen of Guinea, seeks review of a January 8,
7 2010 order of the BIA, affirming the February 15, 2008
8 decision of Immigration Judge (“IJ”) Thomas J. Mulligan,
9 denying Diallo’s applications for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Diallo, No. A098 278 787 (B.I.A. Jan. 8,
12 2010), aff’g No. A098 278 787 (Immigr. Ct. N.Y. City Feb.
13 15, 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, where “the BIA
16 agrees with the IJ’s conclusion that a petitioner is not
17 credible,” we review both the IJ’s and the BIA’s decisions
18 “for the sake of completeness.” Yun-Zui Guan v. Gonzales,
19 432 F.3d 391, 394 (2d Cir. 2005); see Zaman v. Mukasey, 514
20 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
21 review are well-established. See 8 U.S.C. § 1252(b)(4)(B)
22 (“[T]he administrative findings of fact are conclusive
23 unless any reasonable adjudicator would be compelled to
2
1 conclude to the contrary.”); Yanqin Weng v. Holder, 562 F.3d
2 510, 513 (2d Cir. 2009) (“The substantial evidence standard
3 of review applies, and we uphold the IJ’s factual findings
4 if they are supported by reasonable, substantial and
5 probative evidence in the record.” (internal quotation marks
6 and citations omitted)).
7 Although we generally afford particular deference to an
8 IJ’s assessment of an applicant’s demeanor, Jin Chen v. U.S.
9 Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005), we have
10 never held that a demeanor finding alone is substantial
11 evidence sufficient to support an adverse credibility
12 determination, see Li Hua Lin v. U.S. Dep’t of Justice, 453
13 F.3d 99, 109 (2d Cir. 2006) (holding that this Court can be
14 “more confident in [its] review of observations about an
15 applicant’s demeanor where . . . they are supported by
16 specific examples of inconsistent testimony”); see also
17 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)
18 (“Although credibility determinations are entitled to the
19 same deference on review as other factual determinations,
20 the fact that the [agency] has relied primarily on
21 credibility grounds . . . cannot insulate the decision from
22 review.”). Indeed, we have indicated in other cases that
23 certain factors standing alone may not be sufficient to
3
1 support an IJ’s denial of relief. Cf. Kone v. Holder, 596
2 F.3d 141, 148 (2d Cir. 2010) (holding that the mere fact
3 that a petitioner took voluntary trips back to his home
4 country, standing alone, does not suggest either any
5 fundamental change in circumstances or the possibility of
6 internal relocation); Diallo v. I.N.S., 232 F.3d 279, 287
7 (2d Cir. 2000) (holding that a failure to corroborate one’s
8 testimony with supporting evidence cannot form the sole
9 basis for an adverse credibility determination). Here, the
10 IJ based his adverse credibility determination solely on
11 Diallo’s demeanor, and, although the IJ noted that Diallo
12 became increasingly nervous during cross-examination, he did
13 not point to any specific portions of testimony or anything
14 else in the record to support the adverse credibility
15 determination. Because the BIA has not addressed whether a
16 demeanor finding alone is sufficient ground for an adverse
17 credibility determination, see, e.g., Matter of A-S-, 21 I.
18 & N. Dec. 1106 (B.I.A. 1998), we remand for the BIA to
19 address the issue in the first instance.
20 For the foregoing reasons, the petition for review is
21 GRANTED, the BIA’s order is VACATED, and the case REMANDED
22 for further proceedings consistent with this Order. As we
23 have completed our review, any stay of removal that the
4
1 Court previously granted in this petition is VACATED, and
2 any pending motion for a stay of removal in this petition is
3 DISMISSED as moot. Any pending request for oral argument in
4 this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
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